Hungary - Szeged Administrative and Labour Court, 10.K.27.051/2018/5, 07 February 2018
| Country of Decision: | Hungary |
| Country of applicant: | Afghanistan |
| Court name: | Szeged Administrative and Labour Court (Szeged Közigazgatási és Munkaügyi Bíróság) |
| Date of decision: | 07-02-2018 |
| Citation: | Hungary, Szeged Administrative and Labour Court, 07 February 2018, 10.K.27.051/2018/5 |
Keywords:
| Keywords |
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Safe third country
Description
Any other country, not being the country of origin, in which an asylum seeker has found or might have found protection. Note: The notion of safe third country (protection elsewhere/first asylum principle) is often used as a criterion of admissibility to the refugee determination procedure. |
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Child Specific Considerations
Description
Application of a child-sensitive process and assessment of protection status, taking into account persecution of a child-specific nature and the specific protection needs of children. “When assessing refugee claims of unaccompanied or separated children, States shall take into account the development of, and formative relationship between, international human rights and refugee law, including positions developed by UNHCR in exercising its supervisory functions under the 1951 Refugee Convention. In particular, the refugee definition in that Convention must be interpreted in an age and gender-sensitive manner, taking into account the particular motives for, and forms and manifestations of, persecution experienced by children. Persecution of kin; under-age recruitment; trafficking of children for prostitution; and sexual exploitation or subjection to female genital mutilation, are some of the child-specific forms and manifestations of persecution which may justify the granting of refugee status if such acts are related to one of the 1951 Refugee Convention grounds. States should, therefore, give utmost attention to such child-specific forms and manifestations of persecution as well as gender-based violence in national refugee status-determination procedures.” See also the best interests principle. |
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Dublin Transfer
Description
"The transfer of responsibility for the examination of an asylum application from one Member State to another Member State. Such a transfer typically also includes the physical transport of an asylum applicant to the Member State responsible in cases where the applicant is in another Member State and/or has lodged an application in this latter Member State (Article 19(3) of Council Regulation (EC) 343/2003). The determination of the Member State responsible for examining an asylum application is done on the basis of objective and hierarchical criteria, as laid out in Chapter III of Council Regulation (EC) 343/2003." |
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Dependant (Dependent person)
Description
“While there is no internationally recognized definition of dependency, UNHCR uses an operational definition to assist field staff in the work with individual cases: - Dependent persons should be understood as persons who depend for their existence substantially and directly on any other person, in particular because of economic reasons, but also taking emotional dependency into consideration. - Dependency should be assumed when a person is under the age of 18, and when that person relies on others for financial support. Dependency should also be recognized if a person is disabled not capable of supporting him/herself. - The dependency principle considers that, in most circumstances, the family unit is composed of more that the customary notion of a nuclear family (husband, wife and minor children). This principle recognizes that familial relationships are sometimes broader than blood lineage, and that in many societies extended family members such as parents, brothers and sisters, adult children, grandparents, uncles, aunts, nieces and nephews, etc., are financially and emotionally tied to the principal breadwinner or head of the family unit. 14. UNHCR recognizes the different cultural roots and societal norms that result in the variety of definitions of the family unit. It therefore promotes a path of cultural sensitivity combined with a pragmatic approach as the best course of action in the process of determining the parameters of a given refugee family.“ In the context of applications for protection, applications may be made on behalf of dependants in some instances per Art 6 APD. In the context of the Dublin II Regs dependency may be grounds for evoking the humanitarian clause (Art. 15) in order to bring dependent relatives together. In the context of family reunification a condition precedent in the case of some applicants is a relationship of dependency. “The principle of dependency requires that economic and emotional relationships between refugee family members be given equal weight and importance in the criteria for reunification as relationships based on blood lineage or legally sanctioned unions… |
Headnote:
The authorities followed an incorrect interpretation of the Dublin Regulation 604/2013 failing to take into account that the older applicant is the brother of the minor and should remain in Hungary under Article 10 of the Regulation, despite having lodged an application in Bulgaria.
Facts:
The claimants are two siblings who lodged an application for international protection in Hungary. As one of the applicants was underage, the other one was appointed as his guardian for the purposes of the application and the proceedings.
Due to the first entry being through Bulgaria, the Hungarian authorities found that Bulgaria is responsible for the proceedings and concluded that the applicants would have to return there for the examination of their claims. The older applicant had also applied for international protection in Bulgaria but the domestic authorities did not consider him to be an adult. The authorities based their decision on Regulation 604/2013 (the Dublin Regulation) and on the conclusion that the applicants did not have any relatives residing in another EU member state.
The claimants appealed the decision and argued that they would be separated upon returning to Bulgaria. The child also argued that he was abused by the authorities in Bulgaria and that the Hungarian authorities did not consider their personal circumstances when assessing whether Bulgarian is a safe third country. He cited the country information available on Bulgaria and claimed that they would face inhuman and degrading treatment if they were to return to Bulgaria.
The Hungarian authorities maintained that their decision was lawful and added that the cases of the two claimants will be handled together and their deportation will take place at the same time. The authorities also argued that the purpose behind the Dublin system is to clarify which country is responsible for processing the application; it is not up to the claimants to decide where their application will be processed.
Decision & reasoning:
The Court did not agree with the Hungarian authorities on their assessment of the situation under the Dublin Regulation. The Regulation sets out the criteria to consider, when deciding which country is responsible for the applicants. The specific order has to be respected throughout the assessment.
According to the evidence provided by the Bulgarian authorities, only the first claimant has submitted an application in Bulgaria, whereas his underage sibling did not. Therefore, the Court found that as the child had submitted his application in Hungary, Hungary is responsible for processing it.
The Court further observed that the older applicant is a family member of the underage applicant and there has been no decision made regarding the refugee status of latter. Consequently, the older brother’s case will need to be heard in the same country, where the application of the minor is examined. Therefore, Hungary is also responsible for processing the application for the first claimant. Citing Article 10 of the Regulation, the Court concluded that Hungary is responsible for the processing of both applications and ordered the Hungarian authorities to annul the deportation orders and examine their cases.
Lastly, the Court emphasised that the authorities need to consider the fact that the claimants have been in transit zone since 24 October 2017, which is contrary to the Asylum Procedures Directive 2013/32/EU.
Outcome:
Appeal granted.
Observations/comments:
This summary was written by Yvette Talas.